High Court rules 'blatantly discriminatory' amendments to PIP criteria unlawful

RF v Secretary of State for Work and Pensions [2017] EWHC 3375 (Admin) Mostyn J, 21 December 2017

RF v Secretary of State for Work and Pensions [2017] EWHC 3375 (Admin) Mostyn J, 21 December 2017 concerned a challenge to the Social Security (Personal Independence Payment) (Amendment) Regulations 2017 SI No 194, which excluded claimants from any entitlement to the mobility activity 1 if the cause of meeting the descriptor is psychological distress for descriptors 1c, 1d, and 1f.

The 2017 regulations were introduced to reverse the decision of a panel of three judges in MH v Secretary of State for Work and Pensions [2016] UKUT 531 (AAC) which held that a claimant is eligible to score points under descriptor 1c, 1d or 1f if their inability to follow the route of a familiar journey was caused by psychological distress, even if they had the intellectual capacity to navigate the journey.

The claimant, RF, argued that the 2017 regulations should be quashed on the following grounds:

1. The regulations were in breach of Article 14 of the ECHR and were therefore unlawful
2. The regulations were incompatible with the purpose of the scheme as defined in the Welfare Reform Act 2012
3. The Department of Work and Pensions' (DWP) failure to consult prior to making the regulations was unlawful

The Court held that the claim succeeded on all three grounds.  

• The National Autistic Society, Inclusion London, Revolving Doors and Disability Rights UK all gave statements that the intention to treat those with psychological distress differently had not been made clear in the early PIP consultation stages. After reviewing the history of the introduction of PIP, the Court agreed that while the DWP may have had an intention to create a distinction between those affected by psychological distress and those who were not, this had never been communicated to the outside world.
• The Court concluded that the 2017 regulations introduced criteria which were “blatantly discriminatory against those with mental health impairments”.  The Court went on to find that that the wish to save nearly £1 billion a year at the expense of those with mental health impairments was not a reasonable foundation for passing the measure.
   
• The Court also agreed with a submission by the Commission for Equality and Human Rights (CEHR) that the impact of the 2017 regulations drew a distinction between different categories of disabled persons, unrelated to their level of need or their level of functional impairment. This is at odds with the UK’s obligations under UN Convention on Rights of Persons with Disabilities and the inconsistency supported the Court's finding that the measure had no objective justification.

On 19 January 2018, the Secretary of State announced in a written statement in the House of Commons that the High Court's judgment would not be appealed.

On 30 January 2018, the Minister for Disabled People, Health and Work confirmed that the DWP would be reviewing 1.6 million PIP claims following the High Court judgment.

The High Court’s judgment is available: RF v Secretary of State for Work And Pensions [2017] EWHC 3375 (Admin).

For media stories on the High Court challenge and the Government’s response, see:

• The Independent: More than 160,000 people could get disability benefit back-payments from Department for Work and Pensions (19 January 2018)
• BBC News: Personal Independence payments: All 1.6 million claims to be reviewed (30 January 2018)